Ex Parte Maskell

Patent Trial and Appeal Board

Dec 26, 2018

15067886 (P.T.A.B. Dec. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/067,886 03/11/2016 Bruce William Maskell
23370 7590 12/28/2018
KILPATRICK TOWNSEND & STOCKTONLLP
Mailstop: IP Docketing - 22
1100 PEACHTREE STREET
SUITE 2800
ATLANTA, GA 30309
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
061221-1004951 5682
EXAMINER
CHAUDRY, ATIF H
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
12/28/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipefiling@kilpatricktownsend.com
KTSDocketing2@kilpatrick.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUCE WILLIAM MASKELL
Appeal2018-000876
Application 15/067 ,886
Technology Center 3700
Before LINDA E. HORNER, LISA M. GUIJT, and
ARTHUR M. PESLAK, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection2 of claims 18-27. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE, and we enter NEW GROUNDS OF REJECTION,
pursuant to our authority under 37 C.F.R. § 41.50(b).
1 Appellant identifies the real party on interest as Zodiac Pool Systems, Inc.
Appeal Br. 3.
2 Appeal is taken from the Non-Final Office Action dated May 16, 2017.
Appeal2018-000876
Application 15/067,886
STATEMENT OF THE CASE
Claims 18, 24, and 25 are the independent claims on appeal. Claim
18, reproduced below, is exemplary of the subject matter on appeal.
18. A method of operating a pool-water circulation system,
compnsmg:
a. causing pool water to be received by an inlet of a
manifold also comprising an outlet, a chamber, a gate positioned
at least partially within the chamber, and first openings;
b. activating or deactivating a heating device; and
c. causing an automatic actuator to position the gate so as
to allow the pool water to flow from the inlet to the outlet without
significant restriction if the heating device is deactivated or from
the inlet, through the first openings, to a heat exchanger for
heating when the heating device is activated.
THE REJECTIONS
I. Claims 18-21, 24, and 25 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Conley (US 4,138,993; issued Feb. 13, 1979),
Dow (US 2,880,818; issued Apr. 7, 1959), and Olmsted (US 6,089,537;
issued July 18, 2000).
II. Claims 22, 23, 26, and 27 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Conley, Dow, Olmsted, Inoue (US 5,566,881;
issued Oct. 22, 1996), and Palmer (US 803,189; issued Oct. 31, 1905).
ANALYSIS
Rejection I
Regarding independent claims 18, 24, and 25, the Examiner finds that
Conley discloses causing pool water to be received by an inlet of a manifold
also comprising an outlet, a chamber (i.e., housing of bypass valve 32), and
first openings to a heat exchanger (i.e., tubing 14 to the modular heating
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Application 15/067,886
units). Non-Final Act. 3 (citing Conley 3:20-25, Figs. 2, 3). The Examiner
also finds that Conley discloses activating or deactivating a heating device
(i.e., by shutoff valves 33, 34) and causing an actuator (i.e., handle of valve
32) to position valve 32 so as to allow the pool water to flow from the inlet
to the outlet without significant restriction if the heating device is
deactivated (i.e., valves 33, 34 shut off), or from the inlet, through the first
openings, to a heat exchanger when the heating device is activated (i.e.,
valves 33, 34 open). Id. at 4. The Examiner explains that opening and
closing Conley's valves 33, 35 "effectively turns the heating device on and
off' and valves 33, 35 "perform the function of regulating flow to the
heating panels," and as such, "act as a[n] activation/de-activation mechanism
for the heating device." Ans. 6.
The Examiner determines that Conley discloses a manual valve
control system rather than an automatic actuator, as claimed, and relies on
Dow for disclosing an automatic controller 3 8 that electronically controls
both heater 21 and bypass valve 36, such that bypass valve 36 allows a
regeneration gas3 to flow from an inlet to an outlet if the heating device is
deactivated, or from the inlet to a heat exchanger to the outlet if the heating
device is activated, as claimed. Non-Final Act. 4 (citing Dow 5:40-50, Fig.
1 ); see also Dow 5: 13-16. The Examiner reasons that it would have been
obvious to modify Conley's system with an automatic controller, as
disclosed by Dow, "to provide electronic remote control." Non-Final Act. 4.
The Examiner also determines that Conley, as modified by Dow, fails
to disclose the details of valve 32, as claimed, and relies on Olmsted for
3 The Examiner references pool water, but the fluid flowing in Dow's system
is a regeneration gas. See, e.g., Dow 4:11-14.
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Application 15/067,886
teaching that an inline valve may be an electronically controlled gate valve.
Id. at 5 ( citing Olmsted, Fig. 1 ). The Examiner reasons that it would have
been obvious to modify Conley's diverter valve to be a rotary gate valve, as
disclosed by Olmsted, "to provide an easily operable rotary diverter." Id.
First, Appellant argues that none of the prior art references disclose
step (c) of claim 18. Appeal Br. 8. In support, Appellant submits that "the
Conley patent contains no mechanism whatsoever for activating or
deactivating its modular heating units, which instead are active whenever
'the sun's rays ... penetrate' transparent material 17." Id. (citing Conley
2:67-3:1); see also Reply Br. 3 (arguing that Conley's heating units "remain
inactive whenever the sun is not shining, again regardless of the status of
valves 32-34"); 4 (arguing that step (b) of claim 18 is also not disclosed by
Conley because "opening or closing shut-off valves 33 and 34 has no impact
on whether [Conley's] modular heating units ... are active"). Appellant
also submits that Olmstead is only relied on for disclosing an electronically
controlled gate valve, and Dow does not involve pool water. Appeal Br. 9.
Appellant's argument is not commensurate with the scope of claim
18. Contrary to Appellant's argument, claim 18 does not require any
mechanism, or component of the circulation system, to activate or deactivate
the heating device. See, claim 18, as set forth supra (step (b ): "activating or
deactivating a heating device"). We agree with Appellant that Conley's
modular heating units are activated during a heating cycle when sunlight
penetrates the top of the modular heater, and are deactivated at the end of the
heating cycle. See Conley 2:67-3:1. For example, Conley discloses that the
solar heaters have an optional rotary base with a drive unit "suitably geared
so that the drive belt 23 cause[ s] the rotary bases 22 to exactly follow the
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Application 15/067,886
sun's path across the sky," such that "the solar units will always be correctly
facing the radiant source at all times through the heating cycle," and that the
solar panels, "in the afternoon when the heating cycle ends[,] ... return to
their original morning staring orientation" in accordance with "a time clock .
. . properly synchronized to the sun's solar path." Conley 3 :41---60.
Conley also discloses that the purpose of bypass valve 32 is to provide
"a bypass [to] all or part of the flow around the solar heater." 3:34--36. We
determine, in view of Conley's teaching that the rotary bases are actuated
according to a heating cycle (i.e., based on the periods when the modular
heating units are activated and deactivated, acknowledged by Appellant),
and the purpose of bypass valve 32 is to bypass the solar heaters, it would
have been obvious to one of ordinary skill in the art at the time of the
invention to also actuate bypass valve 32 according to the heating cycle. In
other words, it would have been obvious to actuate Conley's bypass valve 32
to allow pool water to flow from the inlet to the outlet (without flowing
through the modular heating unit fluid circuit) if the modular heating units
are deactivated, and from the inlet through the modular heating units when
the modular heating units are activated, as claimed. "[A] reference must be
considered not only for what it expressly teaches, but also for what it fairly
suggests." In re Burckel, 592 F.2d 1175, 1179 (CCPA 1979) (cited with
approval in In re Baird, 16 F.3d 380 (Fed. Cir. 1994)). 4
4 Hornsby (US 6,695,970 B2; issued Feb. 24, 2004), which is incorporated
into Appellant's Specification by reference, expressly discloses that
actuating valve 10 functions to bypass pool water from circulating to heater
unit 56 when the heater unit is switched off (i.e., inoperative). See Hornsby
5:31---6:4; Spec. 2:15-21; see also Hornsby, Abstract ("valves automatically
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Conley itself teaches automating manual valves, and thus, we
determine that the Examiner's reliance on Dow is unnecessary for a prima
facie case of obviousness. 5 See Conley 3:24--26 ("valve [33] may be a
manual or an automatically actuated [valve]"); see also KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007) (citing United States v. Adams, 383
U.S. 39, 50-51 (1966) ("when a patent claims a structure already known in
the prior art that is altered by the mere substitution of one element for
another known in the field, the combination must do more than yield a
predictable result")). We also determine that a gate valve-with a solid face
as compared to the improved sliding plate valve disclosed in Hornsby, is
well known in the art of swimming pool circulation systems, and
particularly, as a bypass valve for a heat exchanger; thus, it would be an
obvious simple substitution of known elements to reach predictable results
to employ a gate valve as a bypass valve in Conley. See, e.g., McIntire,
3:27-31, Fig. 5 (gate valve 18) (US 4,088,113; issued May 9, 1978 and
disclosed by Appellant in Information Disclosure Statement dated Mar. 11,
2016); see also KSR, 550 U.S. at 416 (citing Adams, 383 U.S. at 50-51.
In particular, McIntire discloses, with reference to "a wood-fueled,
automatic swimming pool heater," including a heat exchanger for the pool
water (McIntire 2:32-34) that
[ c ]onnecting the two terminal ends of the heat exchanger 16 is a
manual by-pass 17 comprising a tube equal in volume to the heat
bypass[] a swimming pool heating unit except when the heating unit is
placed into service").
5 See also Hornsby 2:47--48 (disclosing an automatic bypass valve which is
normally open when the heater unit is not in operation, but which
automatically diverts fluid flow to the heater when the heater unit is
activated).
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exchanger tube 16 and a gate valve 18 mounted in the center
between the terminal ends. Mounted in the return end terminal
for the heat exchanger is a water temperature gauge 19 which
permits the operator to determine the amount of water which
shall bypass the heat exchanger 16 by adjusting gate valve 18 to
attain optimum efficiency of the heat exchanger 16.
Id. at 3 :27-36. Thus, we rely on McIntire for disclosing that it was known
in the art at the time of Appellant's invention to position a gate valve in the
bypass fluid circuit of a pool water heat exchanger, as claimed, and that it
would have been obvious to modify Conley's bypass fluid circuit, as
depicted in Figure 3, to include a gate valve, as taught in McIntire, for the
purpose of determining the amount of water that bypasses the heat
exchanger, as is also taught in McIntire. The Examiner's reliance on
Olmsted is unnecessary.
Second, Appellant argues that the Examiner fails to provide a
rationale for modifying Conley to include an automatic actuator, because
there is "no way to 'deactivate' [Conley's] solar heater ... , much less any
way to signal a control unit to change the state of its bypass valve 32 based
on whether the solar heater is activated or deactivated." Appeal Br. 9-11.
Appellant's argument is again not commensurate with the scope of
claim 18. The claimed actuator must position the gate; the claimed actuator
is not required to activate or deactivate the heating device. Also, Conley
expressly recognizes a heating cycle time period when the modular solar
units are activated, as discussed supra. In other words, bypass valves 32, 33,
34 may be actuated according to the same time clock synchronized to the
sun's solar path.
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Finally, Appellant argues that the Examiner has improperly
"independently selected for combination" components from a solar pool
heating system (Conley), a hydrocarbon recover apparatus (Dow), and a
semiconductor manufacturing process (Olmsted). Appeal Br. 11-12. As
discussed supra, the Examiner's reliance on Dow and Olmsted is
unnecessary for a prima facie case of obviousness, and therefore,
Appellant's argument is moot.
Notwithstanding, we determine that the Examiner's determination that
modifying Conley's valve 32 to include "a rotary gate," as taught by
Olmsted, "in order to provide an easily operable rotary diverter," is
conclusory, and lacks adequate factual support. Non-Final Act. 5.
Accordingly, we reverse the Examiner's rejection of independent
claims 18, 24, and 25, and claims 19-21 depending therefrom, as
unpatentable over Conley, Dow, and Olmsted. We enter a NEW GROUND
OF REJECTION of independent claims 18, 24, and 25, under 35 U.S.C. §
103(a) as unpatentable over Conley and McIntire, as set forth supra.
Dependent claim 19, which depends from independent claim 18,
recites, in relevant part, wherein "the heat exchanger comprises tubes having
second openings in liquid communication with the first openings." Appeal
Br. 16 (Claims App.). McIntire depicts at least one first opening in fluid
communication with a second opening, and Appellants do not dispute the
Examiner's finding that Conley discloses multiple first and second openings,
for example, tubing 14. McIntire, Fig. 5; Non-Final Act. 3.
Dependent claim 20, which depends from claim 19, recites, in
relevant part, wherein "the gate has a solid face having an area
approximately the same as the cross-sectional area of the chamber." Appeal
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Br. 16 (Claims App.). An ordinary definition of a "gate valve" is "a valve in
a pipeline consisting essentially of a flat or wedge-shaped gate that can be
lowered in to a seat to seal off the line or raised into an external recess so
that the full area of the line is open." WEBSTER'S THIRD NEW INT'L
DICTIONARY 939 (1993). Thus, we determine one skilled in the art would
understand from the general definition of a gate valve that a gate valve
positioned within a chamber, as disclosed in McIntire, has (inherently, and
unless modified) a solid face having an area approximately the same as the
cross-sectional area of the chamber, in order to be able to seal off the
chamber when lowered into a seat of the chamber.
Dependent claim 21, which depends from claim 20, recites in relevant
part, wherein "when positioning the gate, the automatic actuator causes
movement of an axle attached to the gate." Appeal Br. 17 (Claims App.).
An ordinary definition of a "rotary valve" is "a valve acting by continual or
partial rotation." WEBSTER'S THIRD NEW INT'L DICTIONARY 1976 (1993).
We determine that it would have been obvious to select a gate with an axle
for rotating the gate to seal the chamber of Conley's valve 32. See KSR, 550
U.S. at 416 ("when a patent claims a structure already known in the prior art
that is altered by the mere substitution of one element for another known in
the field, the combination must do more than yield a predictable result").
Accordingly, we reverse the Examiner's rejection of claims 19--21
depending therefrom, as unpatentable over Conley, Dow, and Olmsted. We
enter a NEW GROUND OF REJECTION of claims 19--21, under 35 U.S.C.
§ 103(a) as unpatentable over Conley and McIntyre, as set forth supra.
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Re} ection II
Appellant argues that the Examiner improperly relied on hindsight by
"independently select[ing] for combination" system components from
Conley, Dow, Olmsted, Inoue, and Palmer, to arrive at the subject matter of
dependent claims 22, 23, 26, and 27. Appeal Br. 13. However, Appellant
has failed to identify any knowledge relied upon by the Examiner that was
gleaned only from Appellant's Specification and that was not otherwise
disclosed in the prior art or within the level of ordinary skill at the time of
the invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Appellant also argues that Dow, Olmsted, Inoue, and Palmer are
improperly relied on as analogous art. Appeal Br. 13-15; Reply Br. 6-8. In
support, Appellant submits the Declaration of the inventor, Mr. Maskell 6,
wherein Mr. Maskell concludes that, based on his experience, none of Dow,
Olmsted, Inoue, and Palmer "relate to the field of designing and operating
pool-water circulation systems" (Dec. 2, para. 4), or "contemplate[] reducing
erosion, corrosion, and energy usage in pool-water circulation systems, thus
not commending the patents to [Mr. Maskell's] attention in any way," such
that the references are not reasonably pertinent to the particular problem
with which Mr. Maskell was concerned: "designing the claimed subject
matter." (Dec. 2-3, para. 5). We have considered Mr. Maskell's Declaration,
however, we determine that Inoue and Palmer are analogous prior art,
properly relied on by the Examiner, for the reasons stated infra. As
discussed supra, the Examiner's reliance on Dow and Olmsted are
unnecessary for a prima facie case of obviousness.
6 Declaration of Bruce W. Maskell, dated July 5, 2016, submitted pursuant
to 37 C.F.R. § 1.132 ("Dec.").
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"A reference qualifies as prior art for an obviousness determination
under§ 103 only when it is analogous to the claimed invention." In re
Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (citation omitted). In an
obviousness rejection, it is the PTO's burden to establish that a reference is
analogous art. See In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006).
Appellant correctly identifies the two-prong test for defining the scope of
analogous prior art: (1) "whether the art is from the same field of endeavor,
regardless of the problem addressed," and (2) even "if the reference is not
within the field of the inventor's endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the inventor is
involved." In re Klein, 647 F.3d at 1348 (internal citation omitted). The
"field of endeavor" test asks if the structure and function of the prior mi is
such that it would be considered by a person of ordinary skill in the art
because of the similarity to the structure and function of the claimed
invention as disclosed in the application. In re Bigio, 381 F.3d 1320, 1325-
27 (Fed. Cir. 2004); see also In re Deminski, 796 F.2d 436, 442 (Fed. Cir.
1986) ( determining that the cited references were within the same field of
endeavor where they "have essentially the same function and structure").
"A reference is reasonably pertinent if, even though it may be in a different
field from that of the inventor's endeavor, it is one which, because of the
matter with which it deals, logically would have commended itself to an
inventor's attention in considering his problem." In re Clay, 966 F.2d 656,
659 (Fed. Cir. 1992). "In other words, 'familiar items may have obvious
uses beyond their primary purposes."' In re ICON Health and Fitness, Inc.,
496 F.3d 1374, 1380 (Fed. Cir. 2007) (quoting KSR, 550 U.S. at 420).
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Inoue
We determine that Inoue is in the same field of endeavor as
Appellant's claimed invention: "flow by-pass systems and assemblies and
methods of their use." Spec. 1 ("Field of Invention"). In support, we
determine that the structure and function of Inoue's automotive hot-water
heating apparatus is such that it would have been considered by a person of
ordinary skill in the art because of its similarity to the structure and function
of the claimed invention as disclosed in the Specification. Specifically,
Inoue's automotive hot-water heating apparatus involves "a hot water flow
quantity control valve integrated as a unit with a bypass circuit" (Inoue 2:8-
10) for controlling a quantity of hot water to the heat exchanger (id.,
Abstract). Thus, both the structure and function of Inoue' s manifold is
similar to Appellant's claimed method of operating a pool-water circulation
system, which includes causing an automatic actuator to position a gate to
allow pool water to flow from an inlet to an outlet when a heating device is
deactivated, and from an inlet to a heat exchanger when the heating device is
activated.
Additionally, the Specification discloses that Appellant's invention
seeks to provide "a less-costly by-pass system" by positioning the low-
restriction chamber and by-pass apparatus within the manifold, such that no
separate external plumbing is required. Spec. 3:5-10. Similarly, an object
of Inoue' s invention is to provide a heating apparatus "in which a hot water
flow quantity control valve integrated as a unit with a bypass circuit is
disposed in a hot water pipe portion outside of a heat exchanger for heating"
to gain the advantages of the invention disclosed in Japanese Patent
Publication No. 61-10327, namely, to simplify the structure of the heating
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apparatus. Inoue 2:8-11; see also id. 1:36-48, 2:6-11. Thus, we determine
that Inoue is reasonably pertinent to a particular problem with which
Appellant is involved (i.e., simplification of a water heating circulation and
by-pass system), and logically would have commended itself to Appellant's
attention.
Thus, the Examiner's reliance on Inoue as analogous art is proper.
Palmer
We determine that Palmer is in the same field of endeavor as
Appellant's claimed invention: "flow by-pass systems and assemblies and
methods of their use." Spec. 1 ("Field of Invention"). The structure and
function of Palmer's refrigeration apparatus is such that it would have been
considered by a person of ordinary skill in the art because of its similarity to
the structure and function of the claimed invention as disclosed in the
Specification. Specifically, Palmer discloses a manifold within a fluid
circuit for controlling fluid flow into and out of the manifold, and from one
device in the circuit (i.e., a condenser) to another (i.e., a refrigerator),
including a valve (i.e., valve G) for controlling fluid flow through the
manifold, as well as a pressure-relief valve (i.e., valve 6) for controlling a
by-pass circuit within the manifold. See Palmer 1 :31-32, 44--49, Fig. 2.
Palmer's manifold is both similar in structure and function to Appellant's
claimed method of operating a pool-water circulation system, which
includes causing an automatic actuator to position a gate to allow pool water
to flow from an inlet to an outlet when a heating device is deactivated, and
from an inlet to a heat exchanger when the heating device is activated.
Additionally, the Specification discloses that, in addition to the
problems identified by Appellant supra, Appellant's invention seeks to
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"protect [the low-restriction chamber and by-pass apparatus within the
manifold] from damage" by positioning the low-restriction chamber and by-
pass apparatus within the manifold. Spec. 3:7-9. Similarly, an object of
Palmer's invention is to provide a manifold with a "by-pass passage with its
valve under regulatable tension," such that "undue pressure will relieve it
without injury to the apparatus." Palmer 1: 86-88. Thus, we determine that
Palmer is also reasonably pertinent to a particular problem with which
Appellant is involved (i.e., preventing damage to fluid circulation and by-
pass systems), and logically would have commended itself to Appellant's
attention.
Thus, the Examiner's reliance on Palmer as analogous art is proper.
Claims 22, 23, 26, and 27 depend from independent claims 18, 24,
and 25, and the Examiner's reliance on Inoue and Palmer do not cure the
deficiencies in the Examiner's rejection of the independent claims.
Notwithstanding, we enter a NEW GROUND OF REJECTION of claims
22, 23, 26, and 27, under 35 U.S.C. § 103(a), as unpatentable over Conley,
McIntire, Inoue, and Palmer, as Conley and McIntire are applied to the
independent claims in Rejection I supra and as the Examiner's findings and
reasoning is articulated in Rejection II with respect to Inoue and Palmer,
which findings and reasoning are not disputed by Appellants. Non-Final
Act. 5---6; Appeal Br. 13-15; Reply Br. 6-8.
DECISION
The Examiner's rejections of claims 18-27 are REVERSED.
We enter a NEW GROUND OF REJECTION of claims 18-21, 24,
and 25, under 35 U.S.C. § 103(a), as unpatentable over Conley and McIntire.
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We enter a NEW GROUND OF REJECTION of claims 22, 23, 26,
and 27, under 35 U.S.C. § 103(a), as unpatentable over Conley, McIntire,
Inoue, and Palmer.
This decision contains new grounds of rejection pursuant to
37 C.F.R. § 4I.50(b). 37 C.F.R. § 4I.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review."
37 C.F.R. § 4I.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
( 1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. ...
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record ....
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure§ 1214.01. No time
period for taking any subsequent action in connection with this appeal may
be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l )(iv).
REVERSED; 37 C.F.R. § 4I.50(b)
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